Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010060132019
CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2159 OF 2019
IN
SUIT NO.7407 OF 2006
(HIGH COURT SUIT NO.3393 OF 2006)
Ram Shankar Gupta ]… Plaintiff
Vs.
1. The Maharashtra Housing and Area ]
Development Authority & Anr. ]... Defendants
Appearances :-
Mr. Mangle, Advocate for Plaintiff.
Mr. Lad, Advocate for defendants.
CORAM : HIS HONOUR JUDGE
SHRI SHANKAR G.
BORLEPWAR
(C.R.No.20)
DATED : 7th December, 2020
ORAL ORDER
1. Defendants took out this Notice of Motion to condone delay
in taking out the Notice of Motion to set aside Ex-parte Decree dated
MHCC010060132019
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29.11.2018 and to restore the suit.
2. Perused Notice of Motion, affidavit in support of Notice
Motion, reply of plaintiff. Heard both the Advocates.
3. Following points arise for my determination. I record my
findings thereof for the reasons mentioned below:
Sr. No. POINTS FINDINGS
1. Whether delay in filing Notice of
Motion to set aside the ex-parte Decree
can be condoned?
In the affirmative.
2. Whether said Ex-parte Decree can be
set aside?
In the affirmative.
3. Whether suit can be restored? In the affirmative.
4. What Order ? Notice of motion is
allowed.
REASONS
As to point Nos.1 to 4.
4. In brief, it is contention of defendants that originally suit
was filed in the Hon’ble High Court. The Government Pleader
represented defendants in the Hon’ble High Court till 2012. The
defendants had prepared separate penal of Advocates in the year 2012.
The Government Pleader did not inform the stage of the suit and did
not hand over the papers of the suit to the defendants. The Jurisdiction
of the City Civil Court was enhanced from Rs.50,000/- to Rs.1 Crore in
the year 2012 and therefore, suit having jurisdiction up to 1 Crores had
transferred to City Civil Court.
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5. Plaintiff also filed another suit No.5026 of 2008. The said
suit is pending before this Court. Plaintiff of the said suit forwarded
copy of evidence affidavit by the letter dated 18.08.2018 which was
received by Legal Department of the defendants on 20.01.2018.
Thereafter immediately the same was forwarded to the office of the
defendant No.1 as well as to the Panel Advocate Shri Prakash G. Lad by
the letter dated 31.08.2018.
6. Clerk of the panal Advocate after reading the name of the
plaintiff mentioned in the evidence affidavit kept the evidence affidavit
in the file of the plaintiff of the other suit i.e. Suit No.5026 of 2008. The
said mistake took place because of similar title of both the suits and
both the suits are filed for recovery of money. Therefore, no steps were
taken by the Advocate of defendant to attend this suit. Defendants
regularly attending another suit of plaintiff i.e. Suit No.5026 of 2008.
Advocate of plaintiff served copy of the Judgment and Decree passed by
this Court dated 29.11.2018 in this suit by letter dated 03.05.2019. The
Legal Department of defendants received the said copy of Judgment
and Decree on 06.05.2019. The Resident Executive Engineer of the
defendants forwarded the said copy of the Judgment and Decree with
letter of the plaintiff by his letter dated 08.05.2019 as per directions of
the Legal Department of the defendants which is received to the
Department of the defendant No.1 on 09.05.2019. Legal Defendant had
informed to the Department of defendant No.1 to contact panal
Advocate Shri Lad and forward the said copy of the Judgment to the
panal Advocate Shri Lad alongwith letter dated 16.05.2019.
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7. The Government Pleader Office did not give information
about the suit to the defendants and therefore, defendants were under
impression that the plaintiff has filed only one suit. Consequently
defendants did not appear in the present suit and it is decreed Ex-parte
on 29.11.2008. In the facts and circumstances, there is delay of 145
days to take out the Notice of Motion. The delay may kindly be
condoned and suit be restored as prayed for.
8. Suchit Haldulkar filed affidavit Exh.20 in support of Notice
of Motion. In brief, it is his contention that he is working with Prakash
Lad Advocate for defendant No.1. The office of Prakash Lad Advocate
received letter of Legal Department dated 31.08.2018 forwarding the
copy of the Evidence Affidavit on 04.09.2018. He received the same.
He kept it in the plaintiff’s another Suit No.5026 of 2008 which was on
Daily Board of the court on 06.09.2018 for recording of evidence. Issues
were framed in Suit No.5026 of 2008 on 18.07.2018 and was adjourned
for evidence of plaintiff on 06.09.2018. He was under impression that
evidence affidavit is received is pertaining to the Suit 5026 of 2008,
therefore, he get the evidence affidavit in the file of Suit No.5026 of
2008. He informed the receipt of the evidence affidavit an documents
in the Suit No.5026 of 2008. The said mistake took place because title
of both the suits are identical.
9. In brief, it is contention of the plaintiff that all the adverse
contentions raised in the affidavit in support of Notice of Motion and in
the affidavit filed by the said Clerk Suchit Haldulkar are denial. The
defendants suppressed the true facts. They have fabricated, forged
story to misguide the Court.
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10. It is further contention of the plaintiff that Mr. Santosh
Premdas Bobde, Executive Engineer E/1 MBRRB Board, has no
authority to take out the Notice of Motion because he was requested by
the Executive Engineer Resident M.B.R. & R. Board, Mumbai vide his
letter dated 08.05.2019 to file first Appeal in the Hon’ble High Court is
directed by the Chief Officer M.B.R. & R. Board. The Notice of Motion
filed by the Santosh Premdas Bobde is without authority. Therefore, the
Notice of Motion be dismissed.
11. It is further contention of the plaintiff that defendants were
well aware of the matter as they have filed their written statement in
the suit. Defendants have a separate Legal Department, to monitors all
the legal matters of the defendants.
12. It is further contention of the plaintiff that without
prejudiced to the other contentions raised in the reply that both the
matters were regularly coming on the Board of this Court. A false
affidavit is of so-called Clerk of the Advocate of Panel is filed with
intention to cover the negligence of the defendants. The concocted
story of the defendants is falsified for the simple reason that the other
suit of the plaintiff bearing Suit No.5026 of 2008 was listed on
06.09.2018 for filing the evidence as alleged by the defendants. Legal
Department of the defendants is trying to shift blame on the so called
Clerk of their Advocate to hide their own negligence in monitoring the
hearing of the suit.
13. It is further contention of the plaintiff that it is not
explained as to what prevented the defendants from attending the
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matter in the City Civil Court when the matter is transferred from the
Hon’ble High Court to the City Civil Court. The defendants could have
easily searched the matter on the web side of the City Civil Court.
Defendants cannot blame the Government Pleader’s office for their
negligence. All the other adverse contentions are denial. This suit was
listed on 17.09.2018, 03.10.2018, 20.10.2018, 14.11.2018, 29.11.2018
for hearing. Sufficient opportunity was given to the defendants. Lastly
Ex-parte Decree passed on 29.11.2008. Mr. Suchit Haldulkar, Santosh
Premdas Bobde have intentionally filed false affidavit to any how get
delay condoned to set aside the decree. Therefore, Notice of Motion be
dismissed.
14. According to the plaintiff, defendants filed written
statement in the suit and therefore, the defendants were well aware
about the pendency of the said suit. Defendants acted, negligently and
they tried to blame Legal Department of the defendants and the said so-
called Clerk of Advocate Prakash G. Lad.
15. The Learned Advocate appearing for the defendant No.1
relied upon citation of Hon’ble Supreme Court of India in the Case of
Rafiq and Anr. Vs. Munshilal and Anr. Decided in Civil Appeal No.1415
of 1981 dated 16.04.1981. In the cited case Appellant had filed Appeal
for recalling of order. The Hon’ble High Court disposed of the Appeal in
the absence of the learned Counsel. Application had filed to recall the
order of dismissing Appeal and to permit to participate in the hearing of
the appeal. The Hon’ble High Court dismissed application. The Hon'ble
Supreme Court held no fault of the party who having done everything
in his power. The said party should not suffer because of default of his
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advocate. The Hon'ble Supreme Court pleased to set aside the order of
the High Court dismissing the appeal and refusing to recall order.
16. Defendant No.1 due to the mistake of Clerk of Advocate of
defendant No.1 kept evidence affidavit in another suit of the plaintiff.
Consequently, defendants did not remain present in the present suit and
therefore, suit is Ex-parte Decreed on 29.11.2018. According to the
plaintiff sufficient opportunity was given to the defendants to remain
present before the Court. I am of the opinion that mistake which took
place at the hands of said Clerk cannot be ruled out. At the same time
it was duty of the defendants to keep constant watch on the matter.
17. Perused Order 9 Rule 3 of the Code of Civil Procedure. As
per the said Rule where neither party appears when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
18. Perused Order 9 Rule 4 of the Code of Civil Procedure. As
per the said Rule where a suit is dismissed under Rule 2 or Rule 3, the
plaintiff may (subject to the law of limitation) bring a fresh suit, or he
may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause or for his non-appearance, as the
case may be, the Court shall make an order setting aside the dismissal
and shall appoint a day for proceeding with the suit.
19. As per Order 9 Rule 13 of Code of Civil Procedure
defendant may apply to the Court to set aside Ex-parte decree by which
a decree is passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or defendant was
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prevented by any sufficient cause from appearing when the suit was
called on for hearing, the Court shall make an order for setting aside the
decree as against him upon such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
20. Perused Article 122 of the Limitation Act, 1963. As per the
said provision period of limitation is 30 days to file application from the
date of order of dismissal to restore a suit dismissed for default of
appearance or for want of prosecution.
21. Perused Section 5 of the Limitation Act, 1963. As per the
said provision any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period, if the applicant
satisfies the Court that he had sufficient cause for not preferring the
appeal or making any application within such period.
22. According to the defendant No.1 it came to know about the
said Ex-parte Decree when plaintiff's Advocate served copy of the
Judgment and Decree passed letter dated 03.05.2019 and the Legal
Department of the defendant No.1 asked defendant No.1 to contact
Panel Advocate Shri Prakash G. Lad by letter dated 16.05.2019.
23. In view of the Article 122 of the Limitation Act there is
delay in filing the Notice of Motion. Considering the facts and
circumstances and grounds of delay mentioned in the Affidavit in
support of Notice of Motion, I am of opinion that delay can be
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condoned by imposing cost of Rs.1000/-.
24. Considering the grounds of non appearance of defendants
in the matter, I am of the opinion that one opportunity can be given to
the defendants to context the suit to decide the suit finally on merit.
Hence the said Ex-parte Decree can be set aside. Therefore, I record
findings to point No.1 to 3 in the affirmative and point No.4 the Notice
of Motion is allowed as per final order. Hence following order:
ORDER
Notice of Motion No.2159 of 2019 in Suit No. 7407 of 2006 (H.C. Suit
No.3393/06)(Disposed of) is allowed as under-
1. Delay in taking out the Notice of Motion is hereby condoned subject
to costs of Rs.1,000/-.
2. Defendants are directed to deposit the said costs of Rs.1,000/- in
the court or hand over it to the plaintiff on or before 12-02-2021.
3. Exparte Decree dated 29-11-2018 passed in Suit No. 7407 of 2006
(High Court Suit No. 3393 of 2006) is hereby set aside subject to
compliance of order of the said costs.
4. The Suit No. 7407 of 2006 (High Court Suit No. 3393 of 2006) is
restored at its original stage subject to compliance of order of the said
costs.
5. Copy of this order be kept in Suit No. 7407 of 2006 (High Court
Suit No. 3393 of 2006) and Execution Application No. 227 of 2019.
6. Plaintiff is directed to supply copy of evidence affidavit of PW-1 and
documents relied therein to the defendants.
7. The Suit be posted for admission and denial by the defendants on
the documents relied by PW-1.
8. Both the parties are hereby directed to remain present before the
court 10-03-2021.
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
Dt.: 07/12/2020 City Civil Court, Gr. MUMBAI
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Dictated on : 07/12/2020
Transcribed on : 21/12/2020
Checked on : 22/12/2020
Signed on : 22/12/2020
( SHANKAR G. BORLEPWAR )
Judge, (C.R.No.20)
City Civil Court, Gr. MUMBAI
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
22.12.2020 at 04.45 p.m.
UPLOAD DATE AND TIME
(VARSHA U. PAWAR)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S. G.
BORLEPWAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 07.12.2020
Judgment/order signed by P.O. on 22.12.2020
Judgment/order uploaded on 22.1s2.2020
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